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The following article answers some of the most frequently asked questions about maintenance (alimony) obligations in the Netherlands.
What forms of maintenance obligations are there in The Netherlands?
In The Netherlands there are two main maintenance obligations: child maintenance and spousal or partner maintenance. Child maintenance provides a financial contribution towards the upbringing and education of your children (legal/biological). Spousal maintenance is a financial contribution owed to the spouse left financially less well off after the dissolution of a marriage / civil partnership.
When is child maintenance owed?
A parent is legally obliged to pay a contribution towards the upbringing and education to the parent taking daily care of the child. Child maintenance is mandatory until the child turns 18 years of age. After the child has reached their majority a further contribution may be owed if the child is still studying or cannot financially provide for itself. In such cases maintenance is owed until the child turns 21 years of age.
How is child maintenance determined?
There are two ways in which child maintenance is determined. The first is that both parents, after consultation with their divorce lawyer, agree upon an amount and then include this in the divorce agreement. This constitutes a binding agreement and can, if necessary, be enforced should any default occur.
If the parents cannot agree upon an amount, the courts will determine an equitable maintenance obligation.
To determine the amount of maintenance the so-called TREMA guidelines are followed. Under these guidelines the total income of both parents during the marriage / relationship is determined and a percentage of this income is identified as the average cost for the upbringing of the children in that particular family. This percentage is deemed to be the amount necessary to house, feed, clothe and educate the children in a manner to which they are accustomed. When this need of the children has been determined, the financial capacity of the parents will be determined in order to compare what both parents should contribute according to their means.
If the parents have a co-parenting agreement whereby the children spend roughly half their time with both parents, separate financial arrangements can be made to split the costs of living between both parents rather than setting a fixed amount of child maintenance. These arrangements must be included in a divorce agreement or a written parenting plan.
How is spousal maintenance determined?
Spousal maintenance can be agreed between parties in the same manner as child maintenance (see above). Parties can also agree to waive their right to future maintenance, for example because both parties have enough income to support themselves.
If parties cannot agree on an amount, the courts will determine an equitable amount of spousal maintenance. Spousal maintenance is determined according to the so-called TREMA guidelines by comparing the financial needs of the spouse requesting maintenance and the financial capacity of the defending party to contribute to these needs. The financial needs of the spouse with less income is derived from the total income enjoyed by parties during the marriage. The guidelines assume that both parties must be able to continue this standard of living after the divorce. If the defending spouse does not have the financial means to support the other spouse in this standard of living, the maintenance obligation is adjusted accordingly, sometimes resulting in no maintenance being owed at all. The final amount determined by the courts is always a fine balance between the needs of one spouse and the means of the other.
When does the obligation to pay spousal maintenance end?
If the marriage has lasted less than five years and has remained childless, then the maximum maintenace obligation is equal to the amount of time parties were married. For example, if parties were maried for three years and six months and remained childless, then the maintenance obligation ends three years and six months after the marriage is dissolved. For marriages that have lasted longer than five years or shorter marriages from which children are born, the obligation remains in force for a maximum of 12 years. As an exception the spouses can agree on a shorter period or one spouse can ask the court to limit the period of 12 years to a shorter period.
Should the spouse receiving maintenance remarry or start co-habiting in a stable relationship, then any maintenance obligation ceases immediately from the moment of co-habitation or re-marriage. The obligation to pay maintenance may also cease prematurely if the spouse receiving maintenance starts earning enough income to support themselves and equal their standard of living during the marital period.
Is the payment obligation for spousal maintenance always limited to 12 years?
No. There are three exceptions to this rule:
- Parties can agree upon a longer period of maintenance.
- The law limiting the maintenance period to 12 years was first introduced on the 1st of July 1994. If parties were divorced before this date, then there is no limitation to the maintenance period. Maintenance is therefore owed indefinitely until a court order is obtained releasing the party paying maintenance from their obligation. If you have been paying maintenance to an ex-partner living in the Netherlands for over 15 years, then it is advisable to consult with one of our lawyers about the possibilities of legal action to annul any further maintenance obligation.
- The Dutch Civil Code contains a single exception to the rule in certain cases. Under certain circumstances, the spouse receiving maintenance can request an extension on the basis that they would encounter serious financial problems should maintenance cease. This could, for example, be the case if the spouse receiving maintenance has a serious disability and is therefore not able to support themselves financially in the future. A request for an extension of the maintenance period must be submitted to a competent court within three months after the maintenance period has expired. If no request is filed within this period, then no further claim for maintenance can be made.
My ex-partner is in arrears with their maintenance payments. What can I do?
The international recovery of maintenance is governed by International treaties. If the spouse owing maintenance lives in one of the member states, then you can take steps to recover the arrears via a government agency. In The Netherlands the LBIO is the competent authority and will recover maintenance within The Netherlands. If the spouse receiving (child or spousal) maintenance lives in the Netherlands and the other party lives in another treaty country, then the LBIO will recover the maintenance owed via one of its sister organisations.
To enlist the services of the LBIO, maintenance must first have been awarded by court order. If a maintenance agreement has not been ratified by the competent courts, then the LBIO cannot help with the recovery until you have obtained a court order. Recovery by the LBIO is free of charge for the party to whom maintenance is owing. For more information on this subject, please consult the LBIO website.
When are maintenance payments indexed?
Unless parties have expressly agreed otherwise, by law Dutch maintenance obligations are indexed for inflation on the 1st of January of each year. For more information on the current index percentages, please consult the LBIO website.
Can a court order for maintenance be revised at a later date?
Yes. Both written agreements and court orders regarding maintenance can be revised by the courts at a later date. The courts can revise previous maintenance obligations on the grounds of a significant change in the financial circumstances of one or both of the parties. An example would be unemployment of the party obliged to pay maintenance. Revision can also be sought if the original decision was based on incorrect financial information and is therefore unsound.
Is there any maintenance obligation when dissolving a registered partnership?
Yes. In the Netherlands, the law is the same for both marriages and registered civil partnerships.
Can I get any tax rebates on maintenance payments?
If you pay tax in the Netherlands, maintenance payments to an ex-partner are fully deductible from your Income Tax. For more information, please consult the Dutch Tax Authorities website.
If your questions have not been answered or you wish for additional information on the above, please feel free to contact our Family Law Practice Group contact person.